State v. Sprague

• Decision Date: 26 November 2003
• Docket Number: No. 30966.,30966.
• Citation: 214 W.Va. 471,590 S.E.2d 664
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Dean SPRAGUE, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

590 S.E.2d 664

214 W.Va. 471

STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Dean SPRAGUE, Defendant Below, Appellant.

No. 30966.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 2003.

Decided November 26, 2003.

Darrell V. McGraw, Jr., Esq., Attorney General, Karen O'Sullivan Thornton, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.

John S. Folio, Esq., Clarksburg, for Appellant.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Harrison County entered on December 12, 2001. Pursuant to that order, the appellant and defendant below, Joshua Dean Sprague, (hereinafter "appellant"), was convicted by a jury of escape from an institution, malicious assault of a correctional officer, aggravated robbery, and conspiracy to commit escape from an institution. The circuit court imposed a sentence of five years imprisonment for escape from an institution, a three-to-fifteen-year sentence for malicious assault of a correctional officer to run consecutively with the term of imprisonment for escape from an institution, ten years imprisonment for aggravated robbery to run concurrently with his sentences for escape from an institution and malicious assault of a correctional officer, and a sentence of one-to-five-years for conspiracy to commit escape from an institution to run concurrently with the sentences imposed for his three other convictions. In challenging his conviction, the appellant argues the trial court committed reversible error by trying the case in an improper venue and failing to grant a mistrial when the prosecutor's comments during closing arguments alluded to his failure to testify. He also contends that the charges filed against him were not consistent with the laws of West Virginia. For the reasons that follow, we reverse the appellant's conviction and remand for a new trial.

I. FACTS

It is undisputed that the appellant escaped from a correctional institution and struck a correctional officer during his escape. On July 7, 2000, while an inmate at the West Virginia Industrial Home for Youth on a conviction for grand larceny, the appellant planned an escape with a fellow inmate. Subsequently, the appellant's co-conspirator changed his mind with regard to the attempt of escape. Shortly after 10:00 p.m., the appellant overpowered and attacked a correctional officer knocking him unconscious by striking the officer several times on the head with a fire extinguisher. As a result of the beating, the officer was left bleeding profusely with lacerations to his head, a crushed hand, and a severed finger. The officer spent nearly eight months under doctors' care and underwent extensive therapy.

During the attack, the appellant obtained the Unit door keys from the officer along with the officer's personal keys. The appellant then escaped from the institution. While trailing the appellant in hopes of his capture, the West Virginia State Police K-9 handlers found the appellant's prison shirt with his name tag over the pocket just beside of Long Run Road within Harrison County. The appellant was later apprehended in Covington, Kentucky on August 8, 2000, and returned to Doddridge County, West Virginia. Pursuant to an administrative order of the Doddridge County Circuit Court dated August 10, 2000, he was transferred to Harrison County for trial on these charges.

II. STANDARD OF REVIEW

The appellant argues that the trial judge's decision not to grant his motion for a mistrial was in error. This Court has indicated that the decision to declare a mistrial and discharge a jury is a matter within the sound discretion of the trial court. State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983), citing State v. Craft, 131 W.Va. 195, 47 S.E.2d 681, (1948).

Moreover, the appellant challenges the finding of venue in Harrison County. In Syllabus Point 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), this Court stated:

"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

Further, we stated in Syllabus Point 4 of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996), "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo."

III. DISCUSSION

The appellant raises three assignments of error in his appeal to this Court. We find merit in one of the assigned errors and proceed to discuss that error first.

A. Right Against Self-Incrimination

The appellant contends that the prosecutor improperly alluded to the fact that he did not testify at trial which violated his right against self-incrimination as provided by the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution. The appellant's trial counsel objected to these comments and moved for a mistrial arguing that the prosecutor's statements "allud[ed] to the failure of the appellant to testify." The trial court overruled the objection and denied the motion. The portion of closing argument in question is as follows:

Now there's been a lot of talk and I do want to talk to you about venue. The Defendant, as you have noted, as you've seen from this trial, has not contradicted any of the State's evidence or any of the State's testimony basically about the events that occurred at Sta[ ]dard Hall. There ___ (OBJECTION).

Conversely, the State responds that the prosecutor's comments were clearly related to the fact that the issue being tried was that of venue and not of the crime itself. The State argues that:

The appellant had not during this entire trial contradicted any of the State's evidence regarding the conspiracy, beating, robbery, or escape. He had only contested venue, and that was the only issue the prosecutor alluded to in his remarks. The prosecutor never mentioned the fact that the appellant did not take the stand.

We respectfully disagree with the State's analysis. As the appellant did not testify, no matter what the intention of the prosecutor was, the prosecutor's comments necessarily served to accentuate and highlight the fact that the appellant sat silently without taking the stand, and no matter how harmless the intent, the remarks plainly amount to a comment on the appellant's choice not to testify. W.Va.Code § 57-3-6 (1923) provides that a criminal defendant's decision to invoke his right to not testify as guaranteed by the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution "shall create no presumption against him, nor be the subject of any comment before the court or jury by anyone." In State v. Taylor, 57 W.Va. 228, 235, 50 S.E. 247, 249 (1905), this Court explained the common law origin of this rule. "So the law, having brought the prisoner into court against his will, did not permit his silence to be treated or used as evidence against him." In this regard, we have stated that:

The general rule formulated for ascertaining whether a prosecutor's comment is an impermissible reference, direct or oblique, to the silence of the accused is whether the language used was manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be a reminder that the defendant did not testify. United States v. Harbin, 601 F.2d 773 (5th Cir.1979); United States v. Muscarella, 585 F.2d 242 (7th Cir.1978); United States v. Anderson, 481 F.2d 685, 701 (4th Cir.1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2nd Cir.1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); Hayes [Hays] v. Oklahoma, 617 P.2d 223 (Okl.Cr.App.1980).

State v. Clark, 170 W.Va. 224, 227, 292 S.E.2d 643, 646-47 (1982).

In State v. Boyd, 160 W.Va. 234, 240, 233 S.E.2d 710, 716 (1977), we explained that,

the basis for the rule prohibiting the use of the defendant's silence against him is that it runs counter to the presumption of innocence that follows the defendant throughout the trial. It is this presumption of innocence which blocks any attempt of the State to infer from the silence of the defendant that such silence is motivated by guilt rather than the innocence which the law presumes.

Thus, we have warned prosecutors to "studiously avoid even the slightest hint as to the defendant's failure to testify." State v. Lindsey, 160 W.Va. 284, 293, 233 S.E.2d 734, 740 (1977) (citations omitted).

Consequently, we have consistently held that: "It is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify." Syllabus Point 3, State v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).¹ In Syllabus Point 5 of State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979), we held: "Remarks made by the State's attorney in closing argument which make specific reference to the defendant's failure to testify, constitute reversible error and defendant is entitled to a new trial." Moreover, in State v. Nuckolls, 166 W.Va. 259, 261, 273 S.E.2d 87, 89 (1980) this Court stated: "We have always scrupulously protected the defendant's right not to take the stand under the Fifth Amendment to the Constitution of the United States and Article III, Section 5 of the Constitution of West Virginia." See also, Pinkerton v. Farr, 159 W.Va. 223, 227, 220 S.E.2d 682, 686 (1975) (citations omitted) ("That a defendant's right not to testify in a criminal case is protected by the constitutional mandate against...